6. Family

Nearly all of the 8,875 divorces granted in 2015-16 were heard
in sheriff courts, and 62% used the simplified procedure

Family law in Scotland

Family law covers a wide range of areas related to families,
couples and children. These include divorces and dissolutions when
relationships break down and couples decide to separate;
applications relating to parental responsibilities and rights; and
permanence and adoption cases.

Family law also covers interdicts preventing a party from making
specific contact or coming within close proximity to another, and
exclusion orders that suspend the rights of an individual to live
in the family home. Family procedure cases made up 17% of all civil
court cases initiated in 2015-16 (
Table
5,
Table
1).

This section also contains statistics on sheriff court summary
applications relating to adoption and children's hearings.

Scottish Crime and Justice Survey

In the 2014-15 Scottish Crime and Justice Survey, 2% of
respondents experienced problems to do with the behaviour of a
partner, ex-partner or other person harassing them, 1% experienced
a problem to do with child contact, residence or maintenance and 1%
experienced problems to do with divorce or separation.

Various vulnerable groups were more likely to experience at
least one of the above three problems. For example, those living in
in one of the top 15% most deprived areas in Scotland suffered a
higher prevalence (6%) compared to the rest (3%). Those living in
rented (as opposed to owner-occupied) accommodation were also more
likely to have experienced one of these problems: 7% for social
tenants and 5% for private tenants as opposed to 2% for
owner-occupiers. Victims of crime also had a higher prevalence (7%)
than non-victims (3%).

Among those who experienced at least one of the above three
problems and considered them to be most important, half (51%) had
already solved the problem, while 34% were still trying to solve
it. 28% had sought help or advice from others excluding from family
or friends and over half (60%) had made contact with a solicitor
[8] for help.

Courts statistics - overview

Divorce is the formal procedure that ends a marriage, while the
procedure for ending civil partnerships is known as dissolution. In
addition to divorce and dissolution, the courts can also take
decisions on where a child should live when parents separate;
whether the non-resident parent should have contact with the child
and who should have parental responsibilities and rights. Where
children are involved, or there is a claim for financial provision,
the ordinary procedure is used. However, the majority of divorces
and dissolutions use a simplified procedure which is low-cost and
simpler.

The courts statistics presented in this bulletin relate only to
the principal crave of the case. This means that the statistics on
certain case types, such as contact and residence, do not reflect
the true number of actions brought to court as these issues are
often ancillary craves in a case where the principal crave is for
divorce. The feasibility of publishing statistics on ancillary
craves in future editions of this bulletin is being
investigated.

During 2015-16, 12,892 family cases were initiated in the civil
courts and 11,442 were disposed of (
Table
5). Since 2008-09, there has been the same steady decrease of
13% in both the number of family cases initiated and disposed of.
Divorce / dissolution and parental responsibilities and rights are
the biggest case types and together account for 95% of family cases
initiated (
Figure
7).

Figure 7: Family cases initiated in the civil
courts, 2015-16

Does not add to 100% due to rounding

Court of session

Only a small proportion of family cases are heard in the Court
of Session (1% in 2015-16). In 2015-16, 137 family cases were
initiated in the Court of Session, representing 5% of cases in the
General Department of that court (
Table
6). Divorces and dissolutions accounted for 89% of family cases
initiated in the Court of Session.

Sheriff courts

There were 12,755 ordinary cause family procedure cases
initiated in the sheriff courts during 2015-16, a decrease from the
13,457 cases initiated in 2014-15 (
Table
7,
Civil Justice Statistics in Scotland 2014-15 Table 7).
The majority were divorce and dissolution cases, which made up 77%
of initiated family cases. In 2015-16, 96% of disposed divorce and
dissolution cases were undefended, unchanged from the previous
year. Decree of divorce or dissolution was granted in the vast
majority of cases. Further information on divorce and dissolution
cases can be found in the next section.

The majority of the remaining family cases initiated in 2015-16
related to parental responsibilities and rights. Within this
category, the 1,039 contact cases were the most common. It should
be noted that this statistic relates only to cases where contact is
the principal crave. As in previous years, relatively few parental
responsibilities and rights cases were disposed of in 2015-16
compared to those initiated (1,610 disposed of and 2,232
initiated). One possible explanation is that these cases can be
sisted (suspended) while sheriffs seek further information, and
parties may resolve their issues outside court during this time.
These cases are not then brought back to court for disposal.

As detailed in the
Recent
changes to civil legislation section, the introduction of the
Children's
Hearings (Scotland) Act 2011 has resulted in changes to court
business relating to children's hearings reported in
Table
8. The Act was implemented in June 2013, and while the
statistics for "extend/vary interim order" (previously referred to
as child in place of safety) and children's hearings "referral" and
"appeal" are based on similar definitions to those used for
equivalent statistics previously, caution should be exercised when
making comparisons between before and after those changes took
effect. The statistics for the category "Children's Hearings Act
2011 - Other" have no direct equivalent.

In 2015-16, the vast majority (90%) of applications to
extend/vary an interim order disposed of were granted. Similarly,
most children's hearings - referral applications were granted and
established the grounds for referral, with the case being referred
back to the Children's Hearing to dispose of the case.

The number of adoption petitions has been relatively stable in
recent years. In 2015-16 there were 496 such cases initiated. In
contrast, the number of applications initiated for permanence
orders with authority to adopt has been rising steadily, and
reached 365 in 2015-16. The disposals of adoption petitions and
permanence orders with authority to adopt show a similar pattern
with nearly all these applications being granted (98% and 95%
respectively).

Divorce and dissolution of a civil partnership

Divorce is the formal procedure that ends a marriage while the
procedure for ending civil partnerships is known as
dissolution.

The
Civil
Partnership Act 2004 came into force on 5 December 2005,
allowing legal relationships between two people of the same sex to
be formed. The first civil partnerships in Scotland were registered
on 20 December 2005.

Divorce and dissolution cases can be raised in either the Court
of Session or the sheriff courts. Since 1984, most divorce cases in
Scotland have been heard in the sheriff courts.

There are two grounds for divorce, which are:

The irretrievable breakdown of the marriage, which can be
established by:

Adultery committed by the defender;

Unreasonable behaviour by the defender;

One year non-cohabitation and the defender consents to the
divorce;

Two years non-cohabitation if one party doesn't agree to
the divorce.

Either party being issued with an interim gender recognition
certificate.

The grounds for dissolution of a civil partnership and means of
proving irretrievable breakdown are similar to those for ending a
marriage, although adultery does not establish the irretrievable
breakdown of a civil partnership. Same-sex unions from other
jurisdictions were not recognised in Scotland until the
Civil
Partnership Act 2004 came into force and so no dissolutions
were possible until then.

Divorces and dissolutions can be applied for using two main
procedures in the courts - simplified procedure and ordinary
procedure. The simplified procedure is a low-cost, simple method of
obtaining a divorce/dissolution in cases where there are no
children under 16 and no monetary claims by one spouse or partner
against another
[9]. Other cases go to court under the ordinary procedure.

The latest data on marriages and civil partnerships registered
can be found in the
Marriages
and Civil Partnerships section of the National Records of
Scotland website.

On 12 March 2014, The
Marriage
and Civil Partnership (Scotland) Act 2014 received Royal
Assent. Following this Act, the first same-sex marriage ceremonies
took place in Scotland on 31 December 2014. In addition, couples in
civil partnerships are able to change their relationship into a
marriage.

The divorce and dissolution statistics presented in
Table
9 and
Table
10 are based on different Scottish Courts and Tribunals Service
data than the other statistics in this bulletin. See the section on
Divorce and dissolution data sources for
more information.

The number of divorces has been slowly decreasing from around
13,300 in 1985 to 8,875 in 2015-16 (
Figure
8)
[10]. The main exception to this trend was a sharp rise in
divorces in 2006. This rise can be attributed to the reduction in
non-cohabitation periods required to prove irretrievable breakdown
of a marriage brought into force by the
Family
Law (Scotland) Act 2006.

The total number of divorces
granted in Scotland in 2015-16 was 8,875, 2% less
than in 2014-15 (9,036) (
Table
9). In 2015-16, 62% of divorces granted used the simplified
procedure and 38% used the ordinary procedure.

There were 96 civil partnership dissolutions
granted in 2015-16, up from 81 in 2014-15 (
Table
10). The vast majority of dissolutions granted in 2015-16 (94%)
used the simplified procedure.

Figure 8: Downward trend of divorces since
1985

Figure
9 shows the proportion of divorces that were granted in 2015-16
for different reasons
[11]. Non-cohabitation for two years (68% in 2015-16) and
non-cohabitation for one year with consent (26% in 2015-16) were
the two most common reasons for divorce (
Divorces
& Dissolutions Supplementary Table 2). These proportions
have not changed much since 2010-11.